WV Supreme Court Orders New Hearing Regarding Cell Phone Evidence Used in Robbery Conviction

Updated 5 years ago by Tony Rutherford HuntingtonNews.Net Reporter
WV Supreme Court Orders New Hearing Regarding Cell Phone Evidence Used in Robbery Conviction

The West Virginia Supreme Court has entered a “limited  purpose remand” ruling in the case of a man convicted of robbing Marquee Cinemas Pullman Square theatre. 

Joshawa Clark has been serving a 52 to 60 year sentence at the Mount Olive Correctional Center on two counts of first degree robbery and conspiracy. He and an accomplice, Dustin Shaver, robbed the 16-screen downtown cinema on  July 13, 2009 and Oct. 19, 2009. The same theatre had been robed in November 2008, but no suspect has been arrested in that incident.

Prior to trial by jury, Clark maintained at a suppression hearing  that his constitutional privacy rights had been violated through the subpoena of his cell phone call records. According to the decision, the state’s high court have mandated that Judge Alfred Ferguson conduct an in-depth hearing concerning the  procedure(s) used by law enforcement to obtain the records.

At issue, the defendant’s cell phone records were properly obtained under provisions of the U.S. Department of Justice Drug Enforcement Agency, which the court has interpreted specifically required an open drug investigation.  However, the defendant did reside in an area of the city then widely known for extensive drug activities. But, according to the ruling, the defendant may not have been allowed a sufficient opportunity to challenge the evidence obtained regarding the Sprint cellphone records.

The seriousness of the possible error in allowing the cell phone records to be entered into evidence and heard by the jury could require that a new trial be granted for the defendant --- one in which a new jury would not hear that evidence.

The Court's ruling stated, in part:

“To the extent that the record before us is completely devoid of any development of the issue of whether a drug-related investigation was being conducted, we determine that it is necessary to remand this case to the circuit court for the limited purpose of conducting such proceedings as are necessary for proper factual and legal development to permit the circuit court to enter an order that is adequate for appellate review,” the WV Supreme Court memorandum entered November 13 states.

In a footnote, the justices explain that “If on remand the trial court determines that the DEA did not properly release the information to the local police, then the court must vacate the judgment and grant the Petitioner a new trial. If the trial court upholds its initial ruling denying the motion to suppress, then this Court will enter an appropriate order allowing the parties to supplement their briefs on appeal to assign error based upon the ruling on remand.”

Dustin Shaver, the accomplice, pled guilty to two counts of robbery and testified against Clark. He received a 50 year sentence.

A PDF of the full ruling can be downloaded.

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